Mortimer v. Hanna

• Decision Date: 26 October 1903
• Citation: 35 So. 159,82 Miss. 645
• Court: Mississippi Supreme Court
• Parties: JAMES E. MORTIMER ET AL. v. ANDREW J. HANNAH

35 So. 159

82 Miss. 645

JAMES E. MORTIMER ET AL. v. ANDREW J. HANNAH

Supreme Court of Mississippi

October 26, 1903

FROM the chancery court of Sunflower county. HON. CAREY C. MOODY Chancellor.

Hannah appellee, was complainant, and Mortimer and others appellants, were defendants in the court below. From a decree overruling defendants' demurrer to complainant's bill, the defendants appealed to the supreme court. The facts are stated in the opinion of the court.

Reversed and remanded.

J. Holmes Baker and Mayes & Longstreet, for appellants.

The main purpose of the contract was to get the four hundred acres cleared, the houses built, and the land deadened within the period of eight years, and the provision that the land should be cleared at the rate of fifty acres per annum is not vital.

The bill is filed to obtain a rescission of the contract, purely and simply on the ground that the lessees have not cleared the full one hundred acres, which was the ratable percentage of clearing for the years 1901 and 1902. There is no allegation in the bill of any willful or intentional default on the part of the lessee, nor does the bill set out any action by them which would indicate that they are not proceeding with the performance of their contract in good faith and diligently. Indeed, the bill avers that the lessees and those claiming through and under them, are in actual possession of the land under said contract.

The contract, by its stipulations, does not make the ratable clearing of fifty acres per annum a special or particular condition.

In order to get at the intent of the parties it is necessary and proper to consider the instrument as a whole, and to deduce from it its main purpose and scope. When we do this we see the mere matter of clearing any particular proportion or percentage of the land per annum is purely secondary, and that the vital and substantial purpose of the contract is to have all the work done within the stipulated period of eight years.

The court will observe, in this connection, that no time is fixed prior to the end of eight years within which any of the tenant houses should be constructed. By the terms of the instrument the parties have the whole of eight years, or any part of the period, within which to build the houses, and yet the erection of tenant houses is just as essential to the profitable use of delta lands as is the clearing of the land itself.

Mr. Pomeroy, in the third volume of his Equity Jurisprudence (2d ed.), section 1408, says:

"In all ordinary cases of contract equity does not regard time as of the essence of the agreement. In all ordinary cases of contract for the sale of land, if there is nothing special in its objects, subject-matter, or terms, although a certain period of time is stipulated for its completion, or for the execution of any of its terms, equity treats the provision as formal rather than essential, and permits a party who has suffered the period to elapse to perform such acts after the prescribed date, and to compel the performance by the other party, notwithstanding his own delay."

And in the third volume of the American & English Encyclopedia of Law, the text and note on page 914 asserts:

"If the breach be in a matter which, upon a fair and reasonable construction of the contract, the parties may be deemed to have considered as vital to its existence, or which they have expressly stated shall be vital, it will discharge the promisee from the performance of his promise. In the absence of an express stipulation, a term is considered of vital importance when it goes to the root of the matter, so that a breach of it would frustrate the main object of the contract."

All the authorities agree that where an effort is made to rescind a contract of sale of land on the ground of default in some agreement connected with the sale, that the party seeking the rescission must show that the default was vital, willful and intentional.The bill in this case does not make any such averment.

In this connection, we call the attention of the court to the authorities cited below, which assert the proposition as follows:

"One seeking to rescind a mutual contract of which time is not the essence, on the ground of delay by the other party in complying with its terms, must show either such willful and intentional delay as will evince the intention of the party delaying to treat the contract as at an end, or that the delay has caused such damages as will render a decree of specific performance inequitable and unjust." Reed v. Mix, 66 Miss. 1021; 63 Kan. 745; 55 L. R. A., 706; 169 N.Y. 583.

Johnson, Chapman & Neill, for appellee.

The bill clearly states a failure on the part of the defendants therein to comply with the terms of the contract. They were to put the land in a state of cultivation at the rate of fifty acres per year, so that at the end of the eight-year lease there should be four hundred acres under the plow. Appellee, under the contract, had the right to have the stipulated number of acres put in cultivation each year so that he could be assured that at the end of the eighth year, the length of the lease, his half of the land would begin to yield revenue. The bill shows that only a small part of the required number of acres was put in a state of cultivation in the two years. This gave appellee the right to rescind the contract. "The most frequent ground for rescission amongst those arising after the making of the contract is that of nonperformance; in other words, if one party to a contract fails to perform what the stipulations therein bind him to, the other, upon such failure, may rescind. This applies when the nonperformance is simply a refusal by one to fulfill the contract, or when it arises by reason of his inability to do so." 21 Am. & Eng. Enc. Law (1st ed.), 44; Johnson v. Tuggle, 27 Miss. 845, 846; Moak v. Bryant, 51 Miss. 560; Gullich v. Alford, 61 Miss. 224.

The cases in which a court of equity exercises the jurisdiction to decree the surrender and cancellation of written instruments are, in general, when the instrument has been obtained by fraud, where a defense exists which would be recognizable only in a court of equity, where the instrument is negotiable, and by a transfer the transferee may acquire rights which the original holder did not possess, and where the instrument is a cloud upon the title of plaintiff to real estate. 18 Enc. Pl. & Pr., 750; Hamilton v. Cummings, 1 Johnson's Chy., 520; 1 Pomeroy's Eq., secs. 110-112.

The chancery court having assumed jurisdiction of this cause its decision on this point is final. This court will not review the decision of the lower court and pass on the question whether or not the case more properly belongs in a court of law. Constitution of Mississippi, 1890, sec. 147.

OPINION

TRULY, J.

Appellee on the 9th of February, 1908, filed his bill of complaint against appellants seeking to rescind and have canceled a certain contract of lease and sale for causes set out in his bill. The facts are these: On the 9th of February, 1901, A. J. Hannah, being the owner of a tract of wild land containing five hundred acres, executed a contract of lease and sale to Sibley & Mortimer. In this contract it was provided that the term was to expire the 1st of January, 1909, at which time Hannah was to deed an undivided half interest in the property, conditioned that his lessees should carry out their part of the Contract. In the contract the said Sibley & Mortimer bound themselves to put in a good state of cultivation not less than four hundred acres of land at the rate of fifty acres per annum from the date of the contract, and agreed to deaden all of said land not put in cultivation, and to erect...